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The Committee on
the Elimination of Racial Discrimination, meeting on 23 August 1989,
decides:
1. The author of the communication (initial submission dated 15 March 1989
and subsequent correspondence) is Demba Talibe DIOP, a Senegalese citizen
born in 1950, currently residing in Monaco. He claims to be the victim of a
violation by France of article 5 of the International Convention on the
Elimination of All Forms of Racial Discrimination. He is represented by
counsel, who has provided a copy of his power of attorney.
2.1 The author, who is married to a French citizen and has one child, has
been domiciled in Monaco since December 1985. From July 1982 to December
1985, he had practiced law in Dakar. On 30 January 1986, the author formally
applied for membership in the Bar of Nice, submitting all the documentary
evidence required. On 5 May 1986, the Bar Council of Nice rejected the
application. On 30 May 1986, Mr. Diop appealed the decision to the Court of
Appeal of Aix-en-Provence. By judgement of 27 October 1986, the Court of
Appeal dismissed the appeal; the subsequent appeal to the Court of Cassation
was dismissed on 4 October 1988. It is submitted that all available domestic
remedies have been exhausted.
2.2 The author considers that France has denied him the enjoyment of the
right to work (article 5, paragraph (e) (i), of the Convention) on the
ground of national origin. The decision of the Bar Council of Nice merely
stipulated that Mr. Diop did not hold the Certificate of Aptitude for the
Exercise of the Legal Profession (CAPA), as required by article 11 of Act
No. 71.1130 of 31 December 1971; the Court of Appeal endorsed this argument.
The Court of Cassation, however, held that the Court of Appeal had
erroneously interpreted the text on waiver of the CAPA requirement, and that
it had "substituted purely juridical considerations for those that were
justifiably criticized in the first of the grounds of appeal". The Court of
Cassation found that the author met all the statutory requirements for the
exercise of the lawyers' profession except one: that of French nationality.
The author points out that the Bar Council of Nice had not referred to his
Senegalese nationality as an obstacle to his exercising the legal profession
in France.
2.3 Article 11, paragraph 1, of Act No. 71.1130 of 31 December 1971
stipulates that "no one may enter the legal profession if he is not French,
except as provided for in international Conventions". The author submits
that his case falls within the scope of application of the Franco-Senegalese
Convention on Establishment (Convention d'�tablissement franco-s�n�galaise)
of 29 March 1974, article 1 of which prohibits discrimination between French
and Senegalese citizens in the enjoyment of civil liberties to which they
are entitled on the same terms (including the right to work, set forth in
the preamble of the French Constitution of 4 October 1958). In the light of
this provision, the author claims, the Court of Cassation should not have
considered Senegalese Citizenship as a statutory impediment to the exercise
of the legal profession in France. He further indicates that the legal
profession does not fall within the occupational categories to which the
restrictions of article 5 of the Convention apply, and no other Convention
provision expressly prohibits the free exercise of the legal profession.
2.4 The author further invokes article 9 of the Franco-Senegalese Convention
on Movement of Persons (Convention franco-s�n�galaise relative � la
circulation des personnes) of 29 March 1974, which stipulates that "French
nationals wishing to establish themselves in Senegal and Senegalese
nationals wishing to establish themselves in France for the purpose of
engaging in self-employed activities, or without engaging in any gainful
occupation, must .... produce the required evidence of the means of
subsistence available to them" (emphasis added). He claims that the legal
profession is considered in France to be the epitome of self-employed
activity; this is confirmed by article 7, paragraph 1, of Act No. 71.1130.
2.5 Finally, the author invokes article 23 of the Franco-Senegalese Tax
Convention (Convention fiscale franco-S�n�galaise) of 29 March 1974, which
provides that "[T]he income that a person domiciled in a Contracting State
draws from a liberal profession or similar independent activity shall be
subject to tax in that State alone, unless that person is regularly
possessed of a fixed base for the exercise of his profession in the other
Contracting State . . . . . . For the purposes of the present article,
scientific, artistic, literary, educational and pedagogical activities,
inter alia, as well as the activities of doctors, advocates, architects and
engineers, are considered legal professions" (emphasis added).
2.6 The author further alleges that the French judicial authorities, by
denying him to practical law in France, violated the principle of equality,
enshrined in article 5 of the International Convention on the Elimination of
All Forms of Racial Discrimination. Allegedly, his right to equal treatment
before the tribunals was violated in two respects: First, six lawyers of
Senegalese nationality are members of the Paris Bar. According to the
author, his application would have been granted had he submitted it in
Paris, and considers it unacceptable that the State party should accept such
differences within the national territory. Secondly, it is submitted that
the principle of equality at the international level has also been affected
by virtue of the fact that on the basis of the above-mentioned bilateral
instruments, all French lawyers have the right to exercise their profession
in Senegal and vice versa. Given that the bilateral instruments provide for
the principle of reciprocity, the position of French lawyers practicing in
Senegal or wishing to practice there is said to have been compromised by the
rejection of the author's application by the Bar Council of Nice.
2.7 Finally, it is submitted that the State party violated the author's
right to a family life because, in the life of the impossibility to practice
law in Nice, the author was forced to temporarily leave his home and take up
residence and practice law in Daker, so as to be able to provide for his
family.
3. By decision of 23 August 1989, the Committee on the Elimination of Racial
Discrimination transmitted the communication to the State party, requesting
it, under rule 92 of the Committee's rules of procedure, to provide
information and observations relevant to the question of the admissibility
of the communication.
4.1 In its submission under rule 92, dated 1 December 1989, the State party
observes that the author failed to raise the issue of discriminatory
treatment of which he claims to have been the victim before the domestic
courts; accordingly, his communication is said to be inadmissible because of
non-exhaustion of domestic remedies, under article 14, paragraph 7(a), of
the Convention.
4.2 The State party further observes that the communication is inadmissible
as incompatible with the provisions of the Convention in accordance with
article 1, paragraph 2, which stipulates that the "Convention shall not
apply to distinctions, exclusions, restrictions or preferences made by a
State party to this Convention between citizens and non-citizens". In the
case under consideration, the rejection of Mr. Diop's application by the Bar
Council of Nice was exclusively based on the applicant's nationality, not
because he was Senegalese but because he was not French within the meaning
of article 1, paragraph 2. The State party adds that the ratio legis of
article 11, paragraph 1, of Act No. 71.1130 of 31 December 1971 is to
protect French lawyers from foreign competition. In so doing, France is said
to exercise her sovereign prerogatives expressly recognized by article 1,
paragraph 2, of the Convention.
4.3 With respect to the contention that the author meets all the
requirements for the exercise of the legal profession in France, the State
party notes that the author erroneously assumes that the Court of Cassation
dismissed his appeal only because he was not of French nationality. It
points out that for the Court, this finding was in itself sufficient to
dismiss the appeal, thus making it superfluous to consider whether other
conditions for the exercise of the legal profession in France had or had not
been met. The State party endorses the interpretation of article 1 of the
Franco-Senegalese Convention on Establishment by the Court of Cassation,
according to which this provision merely concerns the enjoyment of civil
liberties and cannot be construed as encompassing a right to exercise the
legal profession. For the State party, the author's argument that the right
to work is a civil liberty and that, since the legal profession is gainful
occupation, it is a civil liberty, is a mere "sophism" and must be rejected:
the exercise of the legal profession is not a civil liberty and is not a
right if all the conditions for its exercise are not met.
4.4 Concerning the author's allegation of discriminatory treatment in
comparison to other Senegalese lawyers able to exercise their profession on
French territory, the State party concedes that several Senegalese lawyers
have been admitted to the Bar of Paris in spite of their nationality. These
lawyers were, however, admitted prior to the judgement of the Court of
Cassation in the author's case; if this jurisprudence were to be invoked
before the Bar Council or the ordinary tribunals, it is likely, according to
the State party, that these lawyers would have to be stripped of the
membership.
4.5 With respect to the treatment of French Lawyers by the Senegalese
authorities, the State party explains that the article 16 of a Senegalese
Law on the Exercise of the Legal Profession of 1984 stipulates that no one
may be admitted to the Bar in Senegal if his is not Senegalese or the
citizen of a State that grants reciprocity. In application of this
provision, the Bar Council of Dakar rejected, on 14 March 1988, the
application of a French lawyer who had been admitted on a probationary basis
in 1984. The decision of the Bar Council of Dakar was based on the fact that
the applicant in question was not Senegalese and that no international
Convention or other application provision provided for reciprocity in the
matter. The Court of Appeal of Dakar confirmed this decision by judgement of
15 April 1989. During the appeal proceedings, it was submitted on behalf of
the Bar Council that the Franco-Senegalese Convention on Establishment of
1974 did not provide for reciprocity with respect to liberal professions. In
his pleadings, the Public Prosecutor, who had himself participated in the
elaboration of the 1974 Convention, contended that the omission of liberal
professions had been deliberate; the State party notes that one of the
Convention's aims purportedly was to forestall the admission of French
lawyers to the Bar of Senegal. The State party concludes that Mr. Diop's
situation in France is similar to that of French lawyers wishing to practice
in Senegal and that, accordingly, the principle of equality of treatment and
of reciprocity invoked by him may be applied to his disadvantage.
4.6 Finally, the State party points out that if the author, who is married
to a French citizen, wishes to live with his family in France while
practicing his profession, it would be open to him to apply for French
citizenship under article 371 of the Nationality Code. If, however, he
wishes to retain his Senegalese citizenship, it would be open to him to ask
for his name to be added to the list of legal counsel (conseils juridiques),
as no condition of nationality is required in France for the exercise of
this profession.
5.1 In his comments, dated 5 February 1990, the author reaffirms that he has
exhausted domestic remedies and points out that the State party has failed
to clarify which effective remedies would still be available to him. With
respect to the State party's objection that he never complained of
discriminatory treatment before the courts, he notes that he only was
subjected to discrimination based on national origin, within the meaning of
the Convention, upon delivery of the judgement of last instance, namely the
judgement of the Court of Cassation of 4 October 1988.
5.2 The author further contends that the State party's argument that the
communication should be declared inadmissible as falling outside the scope
of the Convention is unrelated to the conditions for admissibility set out
in the Convention. It is the task of the Committee on the Elimination of
Racial Discrimination to determine, once a communication is declared
admissible, whether or not it is compatible with the provisions of the
Convention.
5.3 The author reiterates that the French legislator has determined that the
condition for the exercise of the legal profession in France is French
nationality, "except as provided for in international convention"; he
maintains that the texts of the above-mentioned conventions concluded
between France and Senegal speak for themselves, since they make clear that
the State party makes no differentiation between its own and Senegalese
citizens in matters such as the one under consideration. Finally, he notes
that the competent authorities in Nice, well aware of his situation and of
his desire to practice the legal profession in France, delivered his
resident's permit (visa d'�tablissement) on 8 May 1986.
6.1 Before considering any claims contained in a communication, the
Committee on the Elimination of Racial Discrimination must, in accordance
with rule 91 of its rules of procedure, determine whether or not it is
admissible under the International Convention on the Elimination of All
Forms of Racial Discrimination.
6.2 The Committee has taken note of the State party's observation that the
communication should be declared inadmissible because of non-exhaustion of
domestic remedies, since the author did not invoke discriminatory treatment
based on national origin before the domestic courts. On the basis of the
information before the Committee it appears, however, that the issue of the
author's national origin was first addressed by the court of last instance,
the Court of Cassation, in its decision of 4 October 1988. Furthermore, the
State party has not indicated any remedies that might still be available to
the author. In the circumstances, the Committee concludes that the
requirements of article 14, paragraph 7(a), of the Convention and of rule
91(e) of the Committee's rules of procedure, have been met.
6.3 In respect of the State party's observation "that the communication
should be declared inadmissible as not falling within the scope of the
Convention in the light of article 1, paragraph 2", the Committee observes
that the question of the application of this article is one of substance
which should be examined at a later stage, in conformity with rule 95 of the
rules of procedure. The Committee further observes that rule 91(c) of its
rules of procedure enjoins it to ascertain whether any communication is
compatible with the provisions of the Convention. "Compatibility" within the
meaning of rule 91(c) is to be understood in procedural, not substantive,
terms. The Committee does not consider that the author's communication
suffers from a procedural incompatibility.
7. The Committee on the Elimination of Racial Discrimination therefore
decides:
(a) That the communication is admissible;
(b) That, in accordance with article 14, paragraph 6(b), of the Convention,
the State party shall be requested to submit to the Committee, within three
months of the date of the transmittal to it of the present decision, written
observations or statements clarifying the matter and the measures, if any,
that may have been taken by it;
(c) That any explanations or statements received from the State party shall
be communicated by the Secretary-General under rule 94, paragraph 4, of the
Committee's rules of procedure to the author and his counsel, with the
request that any comments which they may wish to submit thereon should reach
the Committee in care of the Centre for Human Rights, United Nations Office
at Geneva, within six weeks of the date of the transmittal;
(d) That this decision shall be communicated to the State party, to the
author and to his counsel.
*/ All persons handling this document are requested to respect and observe
its confidential nature.
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